6
Territorial law and the rise of the state
About twenty generations or ten grandparents ago, the notion of the state as we
know it was dawning. Before then, as we have seen, there was certainly law.
University-trained lawyers, law books, rule of law, and courts with rules and
procedures which (like today) left laypersons cold, were permeating Western
Europe. They lubricated diverse social systems and their interconnections.
Jurisprudence, of its nature, was general. Furthermore, jurisprudence was his-
torical, in the sense that it was an evolving discourse which made reference to
its past in a vision for the future. It was also normative, authorised by and
serving an articulated ultimate reality and meaning, being God’s creation, and
the human’s place in the world.
The supranational law of the papacy was to grow less universally effective, in
tune with the emerging fortunes of the state and the decline in the political power
of the papacy. A secular, selective universality would be advocated by theorists for
an emerging international legal order of particularistic, self-determining states.
Various theorists based this order in human consent and political will (posi-
tivism) and/or rational idealism (naturalism), without the former, universalistic,
European political and moral discourse of allegiance. (Western legal science
remained, nonetheless, conceptually universalistic in terms of the mechanics and
institutions of Western legal systems.) Signified by the end of the Thirty Years War
and the Peace of Westphalia in 1648, the continuing decline of the supranational
papal authority made these new secular theories increasingly relevant.
This chapter will consider these universalistic and particularistic aspects of
the Western legal tradition up until the early seventeenth century. (Investigation
of the crucial transformation in the pattern of law and authority in the
Protestant Reformations will be deferred until chapter 7.) Diverse state forms,
exemplified by the different English and German legal systems, were permeated
by a common, universalistic legal science, continuing the globalisation theme
of universality versus particularity and diversity.
6.1 The birth of the state

monality, there was also a strong sense of social solidarity, brotherhood, friend-
ship and mutual aid in corporate guild and craft groups to protect economic
livelihood,
7
although freedom and equality did not reign supreme.
8
Parliaments have significant origins around this time in the representative
assembly, reflecting the ‘general climate of opinion’. Writings emerged on
feudal, customary and of course revived Roman law. This juristic discourse
advanced the rule of law ideal that ‘important decisions should be made pub-
licly, that customs should not be changed without general agreement, that
consent was necessary when the superior needed extraordinary additions to his
116 State Formation and Reformation
111
See R. C. van Caenegem, An Historical Introduction to Western Constitutional Law
(Cambridge: Cambridge University Press, 1995), pp. 5–6. Aquinas used the word ‘state’
similarly in the sense of the ‘state of the people of the Jews’: Alan Harding, Medieval Law and
the Foundations of the State (Oxford: Oxford University Press, 2002).
112
See Joseph R. Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton
University Press, 1970), p. 57; see too Ernst Kantorowicz, The King’s Two Bodies: A Study in
Medieval Political Theology (New Jersey: Princeton University Press, 1957), pp. 232–62.
113
Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London: Penguin,
2003), p. 214. On the jurists’ fictions of the king’s two bodies – his office and his person – and
the perpetuity of ‘the People’ as a body politic, see Kantorowicz, King’s Two Bodies.
114
On the varying relationships of towns and cities to the emerging states, see Hendrik Spruyt,
The Sovereign State and Competitors: An Analysis of Systems Change (Princeton: Princeton
University Press, 1994) and p. 126 below.

11
6.2 Legal diversity and universality in the emerging European states
In today’s parlance, the later medieval lawyers sought to marry the global with
the local. The ‘Glossators’ were the post Papal Revolution jurists who revived
Roman law and assimilated it into the medieval legal systems. The glosses which
they produced were in the form of explanatory comments concerning Roman
law words, phrases and texts, including accepted usages and interpretations,
and answers to questions not settled by the texts.
12
The later ‘Commentators’ of
the fourteenth century onwards brought about the reception of Roman law into
Western Europe particularly with respect to the plurality of jurisdictions and
legal systems, transforming Justinian’s Corpus into ‘a common law for the whole
of Europe’ – ‘ius commune’.
13
The ius commune was the name given to the legal
science
14
– not necessarily doctrinal law – which was common to Germany,
France, Italy, Scotland and even England around the time of Bracton in the thir-
teenth century. R. H. Helmholz propounds the ius commune as an amalgam of
117 Territorial law and the rise of the state
119
Strayer, Medieval Origins, pp. 65–6.
110
See Gaines Post, Studies in Medieval Legal Thought: Public Law and the State 1100–1322
(Princeton: Princeton University Press, 1964), ch. 4.
111
Strayer, Medieval Origins, pp. 58–60.
112

unity of the ius commune. The greater imperfection of men’s laws (the ius pro-
prium) was related to the lesser imperfection of the laws of the rulers of the earth
(the ius commune), but both laws, in varying measure, contained and divulged
only a tenuous glimmer of the Justice that was absolute, divine, hence eternal.
18
Patrick Glenn has recently captured the complexity of this ‘common law’
notion. There was not just one ius commune system, but ‘multiple, interactive
common laws; each radiating out from major centers’, being ‘law common in
relation to law that was particular’.
19
The ius commune was part of a ‘relational
common law’, coexisting with, for example, the English common law, the
German gemeine Recht, the French droit commun coutumier and Italianate
regional common laws.
20
The value to a general, globalist jurisprudence is
apparent, given the interaction exposed in medieval jurisprudence between
universalistic and diverse human tendencies in the diffusion across Europe of
Romanist law and Western legal science.
21
A relatively common legal science
arose organically from diverse political organisations, prompted by the univer-
salism of the church and its canon law model. Legal pluralism flourished.
The emerging state systems of Germany and England prior to the
Reformations are briefly investigated to demonstrate this viable model for legal
pluralism and also the diverse paths but common origin of law in the interior,
personal dimension of the Space–Time Matrix – not the exterior, bureaucratic,
118 State Formation and Reformation
115
R. H. Helmholz, The ius commune in England: Four Studies (Oxford: Oxford University Press,

not to succeed, even by the time of the demise of the Holy Roman Empire in
1806 (the real and spiritual power of which had been declining since the latter
thirteenth century).
23
Unlike the alliance which the French kings had forged
with the towns, the German kings had allied themselves with the lords, at the
expense of the towns. German kings, in their efforts to achieve the aspirations
of the Holy Roman Empire, had also sought control over Italy. This also
required the support of the dukes and ecclesiastical lords to grant them control
over the towns, at the expense of obtaining any real authority over the lords.
24
In effect, the German kings alienated the towns and were indebted to the lords
in a bargain honoured by none of the parties.
In opposition to the feudal governmental structures and the imperial pre-
tensions of the papacy and the Holy Roman Empire, the German free towns
formed the city-league. From this grew a federation of towns, the Hanseatic
League, in the thirteenth century, peaking in the fourteenth and fifteenth cen-
turies. As a major economically unifying force in Europe embodying emerging
ideas for good government, the Hansa was not merely ‘an economic associa-
tion’; ‘like states it waged wars, and on occasion it could make or break kings’;
and it could ‘send emissaries, sign treaties, collect revenue, enforce Hansetag
decisions . . . raise an army, conduct foreign policy, decree laws, engage in social
regulation, and collect revenue’.
25
Hendrick Spruyt maintains that the Hanseatic League provides evidence for
‘a viable way of organizing economic and political activity in the absence of a
central authority’,
26
in contrast to the state model. Nonetheless, if sovereignty
is considered in the modern sense to encompass a final decision-making struc-

approach. The very large territories (Länder), in developing their legal institu-
tions, borrowed extensively from one another.
28
Contrary to the impression
perhaps created by its political fragmentation, Germany featured a legal sophis-
tication and coherence. The customary law, which operated at the secular level,
was administered by a lay (as opposed to university-trained legal professional)
staff, Schöffen, which systematised the custom in ‘mirrors’ reflecting the territo-
rial customs of the people. The authority of the Schöffen was grounded not in
university learning but ‘on practical experience and familiarity with life, and
perhaps even more on their social position’.
29
The Schöffen had to rely upon the
learned clerk of the city to cope with the submissions of the legal professionals
who practised the ‘learned law’ of the ius commune. This was a centralising,
imperial phenomenon, which had begun earlier in Bavaria. The Schöffen of the
larger cities had sometimes been merchants who were aware of other regimes,
and they were often the subject of appeal for law (responsa) by ‘daughter’ towns.
‘[O]ne of the greatest of the tribal laws’ or ‘mirrors’, premissed in the authority
of Christian political theology, was the Sachsenspiegel (Mirror of the Saxons).
30
This was itself a transportable, common law.
31
There was, then, a strong histor-
ical, customary basis for the German secular positive law, attracting allegiance
by virtue of its location towards the interior orientation of the Space Axis, whilst
featuring an exterior rationality.
To cope with the increasing diversity of interconnections, in the absence of a
legal profession as such practising customary law (as was the case in England),
learned lawyers were imported from the law faculties in Italy and later their

Given that the court, as a court of appeal, could not be expected to have tech-
nical knowledge of the law and customs of the many different trial jurisdictions,
Roman law was applied by default unless local law was specifically pleaded.
34
This reflected an older subsidiarity principle relevant especially to EU law
today:
35
the most local of laws could receive the highest authority, in the absence
of reasons to the contrary.
36
Contrary to the private law in England,
37
the universities played an import-
ant role in the development of Romanist German jurisprudence, particularly
after the reception of Roman law. At the end of the fifteenth century, the opin-
ions of the law professors were obtained, by despatch of record to a university
for consideration (Aktenversendung).
38
The usus modernus Pandectarum (the
modern application of the Pandects, or, literally, Justinian’s Corpus) was used by
the faculties, transcending boundaries of princes and taking authority from the
imperial source.
39
This is perhaps best considered ‘an intellectualisation of
German law and lawyers’
40
[original italics]. The universal tolerance of particu-
larity and diversity therefore declined with the growth of prototypical German
state institutions and the Roman law, whilst still drawing on a long Romanist
legal tradition for authority. Movement towards the exterior orientation of the

conquest and modest size of the country, generated ‘an unusually small and
regionally unified noble class, without semi-independent territorial potentates
comparable to those of the Continent’.
42
Towns were part of the royal estate as a
consequence of the Norman conquest in 1066, when all land in England became
held of the crown (a fiction which survives to this day even in Australian land
law). Towns were never powerful enough to challenge their subordinate status;
and the clergy was not so powerful either, comparatively. It will surprise some to
learn that the English common law which arose at this time was essentially
imported by the French conquerors.
43
There was initially coexistence between royal courts and manorial, feudal and
church courts. The royal courts were not, though, the ‘regular professional
justice’. Royal courts were extraordinary as there were no permanent adminis-
trative, legislative and judicial bodies operating on their own authority.
44
From
an early stage, parliaments emerged as ‘collective institutions of the feudal
ruling class’, coinciding with the boundaries of the country. From the time of
Edward III (reigned 1327–77), barons and bishops in the English parliament
were represented alongside knights and towns. The courts which emerged
‘blended’ the royal jurisdiction with surviving local customary courts. Courts
‘retained vestiges of their original character as popular juridical assemblies in
which the free men of the rural community appeared before their equals’; evolv-
ing into ‘an unpaid aristocratic self-administration’ in the counties, from which
the then judicial role of the Justice of the Peace was to emerge.
45
Similarly to the
German common law, the English common law had (and to a very limited

If the jury or iudex found the allegations proved, judgment would be ordered
against the defendant.
47
The laymen’s decisions in fact replaced the judgment of God – which was
supposed to have been channelled through nature, for example, by trial by
ordeal or battle. The award of money damages was the only remedy the laymen
could provide, ‘probably because of the transitory nature of their office; once
they had given their verdict, their office ceased to exist’. When remedies other
than money came to be required, the first such remedies issued were the inter-
dict by the praetor himself in ancient Roman times, and the injunction by the
Chancellor in the English system, who restricted the common law judges to
control of the writ system. This is how, in time, the systems evolved of the ius
honorarium of the Roman praetor and the equity of the English Chancellor,
48
which in England was to develop in its own jurisdiction separate from the
common law until 1875.
49
There is a difference between a similar legal science as opposed to similarities
in legal doctrines. That is, similar systems of procedure can exist with marked
doctrinal differences. There can be similarities in legal science although much
less in common, doctrinally. For example, there was no major English ‘recep-
tion’ of Roman law as there was on the Continent. That is, English law could not
be derived as a matter of principle by practitioners from Roman jurisprudence.
Yet the doctrinal similarities should not be dismissed: ‘rather than speaking of
conscious borrowings, one must speak instead of parallels, of similarities of lan-
guage, of coincidences that seem too striking to be coincidental’.
50
It is perhaps
going too far to suggest that commonalities may have arisen from the time of
the withdrawal of Roman troops from England in the fifth century.

53
The Treatise called
Glanvill contained considerable knowledge of Roman law, effectively displayed
in the classification of actions of debt and in the dialectical method.
54
No doubt
this was because Glanvill was the student of Vacarius, the first law professor in
England, who founded the civil law school at Oxford. (English common law was
not taught in English universities in earnest until 1753 at Oxford.)
55
The second
major treatise on the practice of the central royal courts, buoyant with Roman
legal science, was Bracton on the Laws and Customs of England,arranged accord-
ing to the tripartite persons, things and actions scheme of Justinian’s Institutes,
with extensive citation of the Corpus Iuris Civilis (the entire body of Justinian’s
texts, including the Institutes, Digest, Codes and Novels).
56
Sir Henry Maine
ventured to call Bracton’s work ‘the plagiarisms of Bracton’.
57
Indubitably, the private law doctrinal development of the common law and
the civil law took on considerable differences,
58
to the point suggested by Alan
Watson that ‘the stress on similarities in these two approaches is . . . funda-
mentally misplaced, and leads to serious misunderstandings of the two systems,
and of legal development in general’.
59
Obviously there were differences in the
systems. Yet a categorical acceptance of Watson’s assertion would be to overlook

See van Caenegem, Western Constitutional Law,p.7.
159
Alan Watson, ‘Roman Law and English Law: Two Patterns of Legal Development’ (1990) 36
Loyola Law Review 247–74, 248.
60
W.W. Buckland cited in Watson, ‘Roman Law’, 248.
161
van Caenegem, Western Constitutional Law, p. 7.
162
After the notable continental codification initiatives from the late eighteenth century onwards,
modern civil lawyers attempting to understand ‘the true nature of Roman law’ may even have
been disadvantaged compared to common lawyers: Obrad Stanojevic, ‘Roman Law and
Common Law – A Different View’ (1990) 36 Loyola Law Review 269–74, 274; Eugen Ehrlich,
Fundamental Principles of the Sociology of Law,trans. Walter L. Moll [1913] (Cambridge, MA:
Harvard University Press, 1936), pp. 254–95.
163
The Star Chamber procedure was part of the controversy which contributed in the following
century to the English civil war.
Equity, showed considerable influence from the ius commune, and for some
time civil lawyers practised before it. The church courts, from the middle of the
thirteenth century, followed the substantive canon law and Romano-canonical
procedure, and the High Court of Chivalry, emerging from the fourteenth
century, also followed the Continental procedure.
64
Whilst common law lawyers were not required to have training in the ius
commune of the Continent, some of the common law lawyers were learned in
it. Early on, the university at Bologna had trained many English ecclesiastics in
canon law, which inspired a familiarity with Roman law which re-entered
England in the student’s intellectual baggage.
65

Perhaps most significantly and uniquely, England had
125 Territorial law and the rise of the state
164
Donahue, ‘Ius Commune’, 1754–5; see too Helmholz, Ius Commune,p.3; Berman, Law and
Revolution II,pp. 212–13; van Caenegem, European Law,pp. 19–21.
165
Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge MA: Harvard
University Press, 1927 reprinted 1993), p. 211.
166
See David J. Ibbetson, ‘Common Lawyers and the Law Before the Civil War’ (1988) 8 Oxford
Journal of Legal Studies 142–53, 147, on the disproportionate contribution of English lawyers
to the renaissance; Brian Levack, The Civil Lawyers in England 1603–1641 (Oxford: Clarendon
Press, 1973).
167
David J. Seipp, ‘The Reception of Canon Law and Civil Law in English Common Law Courts
Before 1600’ (1993) 13 Oxford Journal of Legal Studies 388–420, 388–91.
168
See Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the
Emergence of a European Legal Science’ (1996) 112 Law Quarterly Review 576–605, 588.
169
Donahue, ‘Ius Commune’, 1747.
170
See James Muldoon, Empire and Order: The Concept of Empire, 800–1800 (New York: St
Martin’s Press, Inc., 1999), p. 96.
171
See Alan Watson, The Evolution of Western Private Law (Baltimore: The Johns Hopkins
University Press, expanded ed. 2001), pp. 244–7.